Saturday, June 9, 2007

over at the nexthurrah, i took a minuteto lay out one of the most-telling problemswith the "logic" offered by the gaggle ofgraybeardsamici filing of yesterday. jep noted:

. . .It sounds like these high-dollar lawyers are saying, in a round-about way, that Fitz was too independent of the DOJ, and that the DOJ should have had a bigger hand in the Libby event... which would only have impeded the progress, if not halted it completely.

Which is what they really wanted all along.

Posted by: JEP June 09, 2007 at 09:41

jep: that is EXACTLY what the are saying! -- not "round-about", though -- here is "the gaggle o' graybeards'" closer, andi quote [emphasis above, and below, supplied]:

. . .Because Special Counsel Fitzgerald was directed, in writing, to act “independent of the supervision or control of any officer of the Department,” there is no supervisor to whom he is subordinate and no apparent way to bring him within the test set forth in Edmond. [ed. note: but edmond is not the controlling case law, here -- as most acknowlege.]

“If an official is not appointed by the President, but rather through some other avenue available under Article II for inferior officers, then political accountability needs to be ensured in some other way.” [citations omitted]. With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed “superiors” politically accountable for his actions, and it is at the very least a close question whether themere power of removal does anything to solve the problem. . .

-- bork amici filing: 06.08.07

wow -- that is astonishing, no?

they take some remarks made by laurence tribe,a good man, and constitutional expert (but,again, his "remarks" are not law, in any sense), andstand them on their head to suggest, wrongly of course,that fitzgerald must be held politically accountable(through his "superiors") -- for bringing cases againstadministration officials -- in order not to upset thedelicate constitutional interests in play, here. . .

quoth sen. sam ervin (circa 1973): "poppycock!"

what professor laurence tribe actuallywrote was far-more-nuanced than the amicisuggest in their conclusion -- in fact, hismost strongly-stated version of this is:

". . .it would not be unthinkable, in light of our troubling national experience. . . and Justice Scalia's [Morrison dissent], for the Court to revisit the question. . ."

American Constitutional Law684 (3d ed. 2000)Laurence H. Tribe

so, with all due respect to professor tribe, simply because one professor thinksa revisiting of the law is "not unthinkable",does not -- in any manner -- suggest thatthe existing law presents a "close question". . .

in common parlance, the phrase "not unthinkable"would NOT automatically imply the existence ofa "close question" -- thus the bork amici offerlaurence tribe's good name, deceptively, here. . .for a proposition he likely would not endorse(else there might have been 13 graybeards!), andfor the well-known political wedge-issuedivisiveness it might engender, on this very question.

[now -- refresh me on this, all you learned-gentlemen-of-the-law, 12 in number -- what is it that antoninscalia forever tells us about "political questions"?

that's right! -- political questions are to be de-cided by the legislative, not judicial, processes. . .

end.snark.portion]

so, to re-state the obvious, then -- that a politicalquestion might be robustly-debated, is not to say,or decide, that the law already established inmorrison involves a "close question".

it is to say that reasonable people, mightin good faith, argue for a change in existing law. . .

and, as a general rule, arguing for a change in the existing law -- even constitutionallaw -- will not be the basis for bail, pendingan appeal. . . so, to phrase their argumentthe way they have, is to decide that it iswithout merit -- at least as to the questionof mr. libby's continued freedom, while hisappeals are prosecuted. . .

3 comments:

And in common layman terms, Fitz did his job and did it well and it pisses them off. Your point is well taken that the law, and its enforcement, is separate from political control. No one can control Fitz politically and that is all well and good but they gotta figure out a way to end that still functioning part of our democracy, no?

all content: (cc) 2007-08

the buddha said

IN LIGHT OF THE CLEAR EVIDENCE OF “A HIGHER INVOLVEMENT” IN I. LEWIS SCOOTER LIBBY’S PERJURY AND OBSTRUCTION OF JUSTICE -- AND THEN THE JULY 2, 2007 PRISON SENTENCE AND IMMEDIATE, BREATH-TAKING JULY 2, 2007 PRESIDENTIAL COMMUTATION OF THAT SENTENCE -- IT IS HIGH TIME TO EXAMINE THE MERITS OF INDICTING THE VICE PRESIDENT, DICK CHENEY, AS THE LEADER OF A CONSPIRACY TO MISUSE CLASSIFIED INFORMATION, AND COMPROMISE C.I.A. OPERATIVES — ALL FOR PARTISAN POLITICAL RETRIBUTION.